A bus driver has a duty of care towards all persons travelling on the bus, including those travelling on the roof, even though it may not have been permissible in law for them to be there.

1. Travelling on the roof of the bus, does it per se constitute contributory negligence on the part of such passengers if due to the negligence of the bus driver injury is caused to him? Here lies the significant point in issue in this appeal.

2. On June 30, 1983, the claimant- Vijay Singh boarded Haryana Roadways Bus HRF-5190 at Fatehabad on his way home at village Bhadolan Wali on the Fethehabad-Thedi-Hanspur Road. As the bus was full to capacity, the claimant got on the roof of the bus. When this bus reached near village Thedi, there were over-head electric wires hanging across the road. According to the claimant, he got entangled with one of these wires and was thrown off the bus as a result of which he sustained serious injuries. Compensation was asked for by him in respect of these injuries.

3. According to the respondents, that is, the bus-driver and the General Manager of the Haryana Roadways, the claimant had climbed on to the roof of the bus despite the express warning against it given to him by the driver and the conductor of the bus and he did not get down and come into the bus even at the next bus-stand when there were seats available inside the bus. Further, it was their case that the claimant had jumped down from the roof of the bus when the hanging electric wires were 100 yards away. In other words, it was denied that he was thrown off the bus by getting entangled with the hanging electric wires.

4. The Tribunal after taking into account the evidence on record came to the conclusion that the claimant had fallen from the roof of the bus after being hit by the suspended electric wires, but at the same time also held him guilty of contributory negligence on the ground that he "ought" to have known that travelling on a roof of the bus is hazardous and having this knowledge, he placed himself in such a position and just travelled by sitting on the roof of the bus. He has, therefore, equally contributed towards the taking place of the injuries to himself." A sum of Rs. 4,000.00 only was thus awarded as compensation.

5. No exception can be taken to the finding of the Tribunal that the claimant had been thrown off the roof of the bus when the hanging electric wires hit into him. This stands established by the testimony of P.W. 2 Kishan Lal and P. W. 5 Partap Singh, both passengers travelling on the same bus, besides the testimony of the claimant himself, P.W. 3 Vijay Singh. The bus driver, R.W. 1 Tulsi Dass admits to there being hanging electric wires, though, of course, he denied that the claimant had sustained injuries except by jumping from the roof of the bus. Situated as the bus-driver was, it was clearly not possible for him to have seen how the claimant fell from the bus. No occasion is thus provided for holding otherwise than as the Tribunal, that the claimant fell when he was hit by the electric wires.

6. There is a duty of care that rests upon the driver of a bus towards all persons travelling on it which covers not only those in it, but extends also to passengers travelling on the roof of it, even though it may not have been permissible in law for them to be there. Breach of any rule of instruction prohibiting travel on the roof of a bus cannot be construed as a licence to the bus-driver to drive the bus without due regard to the care and safety of all passengers including those on the roof. Rather, when there are passengers on the roof, extra-caution is imperative. These observations are, of course, not to be taken as approving or permitting travel on the roof of a bus. It is clearly incumbent upon the authorities concerned to ensure that travel on the roof of a bus is not only banned, but does not in fact take place as a risk of serious injury, is so obviously inherent in such travel.

7. Seen in this light, no contributory negligence can be fastened upon a passenger travelling on the roof of a bus, who sustains injuries on account of the negligent driving of the bus-driver, merely on the ground tha